New York Amends the Human Rights Law to Prohibit Discrimination Based on Traits Historically Associated With Race (Such As Hair Texture and Protective Hairstyles)

July 22, 2019

By Subhash Viswanathan

On July 12, Governor Cuomo signed a bill amending the New York Human Rights Law to prohibit employment discrimination based on "traits historically associated with race, including, but not limited to, hair texture and protective hairstyles."  The term "protective hairstyles" includes, but is not limited to, "such hairstyles as braids, locks, and twists."  This amendment took effect immediately upon the Governor's signature.

Read More >> New York Amends the Human Rights Law to Prohibit Discrimination Based on Traits Historically Associated With Race (Such As Hair Texture and Protective Hairstyles)

Federal Court Holds That New York Law Prohibiting Mandatory Arbitration of Sexual Harassment Claims Is Invalid

July 15, 2019

By Kaveh Dabashi

In 2018, Governor Cuomo signed a State Budget bill that included various provisions addressing sexual harassment in the workplace.  Among those provisions was a prohibition on including in any written contract a clause requiring the submission of sexual harassment claims to arbitration, except where inconsistent with federal law.  On June 26, 2019, the U.S. District Court for the Southern District of New York held, in Latif v. Morgan Stanley & Co. LLC, that this New York law prohibiting mandatory arbitration of sexual harassment claims is inconsistent with the Federal Arbitration Act and is therefore invalid.

Read More >> Federal Court Holds That New York Law Prohibiting Mandatory Arbitration of Sexual Harassment Claims Is Invalid

Employment Law Through the Philosophy of a Martial Arts Practitioner

July 12, 2019

By Howard M. Miller

The other night I found myself in a Brazilian Jiu-jitsu class with a 250-pound musclebound gentleman sitting on my chest trying to do rather unkind things to my neck and vulnerable joints.  While this was certainly not the most opportune time to be thinking about how to parlay this situation into a blog article, it did occur to me that the crushing weight on my chest and the attendant loss of oxygen therefrom, is how many of my clients must feel in the day-to-day trenches of the modern-day digital world of human resources.

The situation also gave me pause (again, not at the best time) to think about what life lessons I have learned from many years of training in different styles of martial arts (other than how to tape deformed fingers and that a bag of frozen peas works wonders on bruised ribs).  Upon further reflection, I realized that I do in fact incorporate many of the philosophies that underlie martial arts into my employment law practice.  I share those pearls of wisdom below.

Read More >> Employment Law Through the Philosophy of a Martial Arts Practitioner

New York Prohibits Salary History Inquiries and Expands Equal Pay Claims

July 11, 2019

By Jacqueline A. Smith

Yesterday morning, moments ahead of the parade in New York City to celebrate the Women’s National Soccer Team’s World Cup victory, Governor Andrew Cuomo signed into law two bills related to equal pay.  The enactment of this legislation follows allegations made by members of the Women’s National Soccer Team that the U.S. Soccer Federation has engaged in gender-based wage discrimination by paying the Women’s Team less than the Men’s National Soccer Team.

Read More >> New York Prohibits Salary History Inquiries and Expands Equal Pay Claims

New York Legislature Passes Significant Amendments to the New York Human Rights Law

June 21, 2019

By Theresa E. Rusnak and Subhash Viswanathan

On June 19, 2019, the New York State Assembly and Senate passed legislation that makes sweeping changes to the New York Human Rights Law.  This legislation will have a significant impact on the litigation of discrimination and harassment claims filed with the Division of Human Rights and in court.  It is expected that Governor Cuomo will sign the legislation soon.  The legislation does not apply retroactively, so only future claims under the Human Rights Law will be affected.

Read More >> New York Legislature Passes Significant Amendments to the New York Human Rights Law

NLRB Holds That Employers May Prohibit Non-Employee Union Organizers From Soliciting Employees in the Public Spaces of Their Facilities

June 16, 2019

By Tyler T. Hendry

On June 14, 2019, the National Labor Relations Board ("NLRB" or the "Board") issued a decision in UPMC and its Subsidiary, UPMC Presbyterian Shadyside, reversing long-standing precedent and holding that employers may bar non-employee union representatives/organizers from soliciting employees or promoting union membership in public areas within an employer’s facility.

Read More >> NLRB Holds That Employers May Prohibit Non-Employee Union Organizers From Soliciting Employees in the Public Spaces of Their Facilities

U.S. Supreme Court Rules That Title VII's Requirement to File an EEOC Charge Before Commencing a Federal Court Lawsuit is Not a Jurisdictional Rule

June 5, 2019

By Justin A. Reyes

On June 3, 2019, the United States Supreme Court unanimously ruled in the case of Fort Bend County, Texas v. Davis that the requirement under Title VII of the Civil Rights Act ("Title VII") to file an administrative charge with the Equal Employment Opportunity Commission ("EEOC") is a non-jurisdictional claim-processing rule. In other words, the Court held that a plaintiff's failure to file an EEOC charge does not automatically preclude a federal court from exercising jurisdiction over the complaint; instead, an employer must "promptly" raise the defense that the plaintiff failed to satisfy the procedural requirement of filing an EEOC charge. An employer's failure to raise such a defense promptly could result in forfeiture of the defense, and a federal court may exercise jurisdiction over the complaint despite the plaintiff's failure to file an EEOC charge.

Read More >> U.S. Supreme Court Rules That Title VII's Requirement to File an EEOC Charge Before Commencing a Federal Court Lawsuit is Not a Jurisdictional Rule

A Higher Hurdle Imposed for ADA Plaintiffs in the Second Circuit

May 14, 2019

By Richard S. Finkel

It just became a bit more difficult for plaintiffs within the jurisdiction of the Second Circuit Court of Appeals (which includes New York) to succeed on disability discrimination claims brought against their employers under the Americans with Disabilities Act (“ADA”).

The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.”  An employer also may face liability if it refuses to provide a reasonable accommodation to an employee with a disability and that employee can demonstrate that he or she can perform the essential functions of his or her job if provided with such an accommodation.  A plaintiff advancing either type of claim is required to demonstrate a causal connection between his or her disability and the adverse employment action.  Until now, the employee litigating his or her claim within the Second Circuit had that causal connection examined under a “mixed motive” analysis.

However, that recently changed in Natofsky v. City of New York, decided on April 18, 2019.  In that case, the Second Circuit Court of Appeals held that the same standard should be used to analyze disability discrimination claims brought under the Rehabilitation Act of 1973 (which applies to federal employers and employers operating programs or activities that receive federal financial assistance) and disability discrimination claims brought under the ADA.  The Court determined that, under both statutes, a plaintiff must prove “that discrimination was the but-for cause of any adverse employment action."

The Court’s adoption of the “but-for” standard means that ADA plaintiffs now face the same hurdle that employees advancing ADEA claims and Title VII retaliation claims face.

Read More >> A Higher Hurdle Imposed for ADA Plaintiffs in the Second Circuit

The U.S. Department of Labor Issues New Proposed Regulations on Joint Employer Status

April 23, 2019

By Paul J. Buehler III

On April 1, 2019, the Wage and Hour Division of the U.S. Department of Labor ("DOL") announced a proposed update to its joint employment regulations, which is the first significant revision to the DOL's joint employment rules since their promulgation in 1958.  The proposed updates to the regulations attempt to clarify joint employer status for purposes of wage liability under the Fair Labor Standards Act ("FLSA").

Read More >> The U.S. Department of Labor Issues New Proposed Regulations on Joint Employer Status